BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130007539 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his discharge.

2.  The applicant states that when he initially left the military he was going on holiday leave.  While at home, his girlfriend was murdered and he was left to care for their baby.  He called his unit to explain, but his first sergeant yelled for him to return without understanding what had transpired.  As a result, he hung up and afterwards, because he was young and not in the right mindset, his life spiraled out of control.  He concludes he did not receive any civil convictions until after he departed the military.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Homicide Report
* a Department of Veterans Affairs (VA) Statement in Support of Claim

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 22 August 1957 and enlisted in the Regular Army on 14 September 1979 at 22 years of age.

3.  The applicant submitted a copy of a Homicide Report, Philadelphia Police Department, dated 20 February 1980, which shows he stated he returned home to find his girlfriend had been murdered, but his daughter was uninjured.

4.  His record contains:

	a.  a memorandum from the U.S. Army Enlisted Records and Evaluation Center, dated 24 October 1984, subject:  Soldier Arrested/Confined by Civilian Authorities, which attempted to ascertain the duty status of the applicant and stated the applicant had been apprehended and was confined to the State Correctional Institute Rockview, Bellefonte, PA.

	b.  a memorandum from the U.S. Army Personnel Control Facility, Fort Dix, NJ, dated 10 July 1985,  subject:  Soldier Arrested/Confined by Civilian Authorities, which stated:

		(1)  contact had been made with the civilian authorities to ascertain the status of the Soldier;

		(2)  a detainer had been placed with civilian authorities; 

		(3)  the Soldier was restored to the rolls of his organization; and 

		(4)  actions were underway to separate the Soldier in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14.

5.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  The evidence does include a DD Form 214 that contains the authority and reason for the applicant's active duty discharge on 14 August 1985 which shows in:

* Item 12c (Net Active Service this Period) "9 months and 24 days"
* Item 24 (Character of Service) "Uncharacterized"
* Item 25 (Separation Authority) "Chapter 14, Section II, AR (Army Regulation) 635-200"
* Item 28 (Narrative Reason for Separation) "Civilian Conviction"
* Item 29 (Dates of Time Lost During This Period) contains entries showing a total of 2,044 days lost

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, chapter 14, for a civilian conviction.

2.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a DD Form 214 that identifies the reason and the characterization of the applicant's service.

3.  Evidence of record shows the applicant was confined by civilian authorities during his period of service.  His record shows he had a total of 2,044 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  His record shows he was 23 to 28 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Therefore, there is no justification or reason to change the applicant's narrative reason for separation as his separation was based on a civilian conviction.

6.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.

7.  In view of the above, there is no basis for granting the applicant relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X__  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 






are insufficient as a basis for correction of the records of the individual concerned.




      ___________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130007539





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ABCMR Record of Proceedings (cont)                                         AR20130007539



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